court courts doctrine constitutional

In the 1960s and early 1970s, the growth of the civil rights movement rendered the "handsoff" doctrine increasingly vulnerable to attack. It was difficult to maintain the validity of the handsoff doctrine at a time of rising expectations for fair and equal treatment by government.

Several forces combined during the 1960s to increase the number of prison cases and shake the noninterventionist foundations of the doctrine. First, prisoners were becoming increasingly militant and assertive. The Black Muslims' successful First Amendment challenge to prison officials who ignored or punished their efforts to practice their religion represented some of the first courtroom victories for prisoners (Pierce v. LaVallee, 293 F.2d 223 (2d Cir. 1961); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961)). These victories opened the door to litigation on a variety of prison-related issues.

Second, the emergence and growth of a civil rights–civil liberties bar in the legal profession coupled with private foundation and public funding under the legal services program provided the expertise and funding for effective prisoner litigation. Overburdened courts that easily dismissed the complaints of pro se prisoners with limited education and little, if any, legal training could not so readily dismiss the same complaints properly filed by attorneys. Legal support of the cause was buttressed by public and media support as prison reform and the more humane treatment of prisoners became popular reformist themes after the release of a presidential crime commission report in 1967 (President's Commission). Finally, a new federal crime-control program, the Omnibus Crime Control and Safe Streets Act of 1968, was enacted, providing visibility and financial incentives for correctional reform.

Third, the judiciary was becoming more responsive to the plight of society's underprivileged. Nationally, the Supreme Court expanded the rights of the individual in relation to the state. These opinions began to establish the principles that federal courts have a special role in protecting the rights of "discrete and insular minorities" who are politically powerless. Prisoners are, by and large poor, minority persons whose needs command little respect in state legislatures—exactly the type of individuals that needed the protection of the courts. Supreme Court decisions helped prisoners assert their rights in two other ways: the Court's extension of most of the provisions of the Bill of Rights to the states allowed prisoners housed in state institutions to sue for violations of federal constitutional rights; and, the Court's resurrection of the Civil Rights Statute (42 U.S.C. § 1983) provided prisoners with an attractive procedural avenue for challenging prison conditions and practices in federal courts.

Finally, the public, including judges, became increasingly aware of the sordid conditions that often characterized prison life. Remote locations and highly restrictive visitation and mail policies complicated discovery of the activities behind prison walls. But prisoner strikes and riots, like the uprising in Attica, New York, in 1971 brought the reality of prisons to the attention of the public. Widely read books by prison authors like Eldridge Cleaver, Malcolm X, and George Jackson also helped raise the consciousness of the public. Likewise, these independent sources of knowledge about prison conditions may have raised the credibility of prisoner complaints in the eyes of judges. All these ingredients set the stage for the courts to begin the development of prisoners' rights law, as the hands-off doctrine declined.

Because of these factors, lower court judges began, almost for the first time, to consider the claims of inmates. Litigation, about conditions of confinement, whether in the horrendous prison systems of Arkansas, Alabama, and Mississippi or the infamous "Tombs" jail in lower Manhattan, New York, forced the lower courts of the 1970s to come face-to-face with the grimmest conditions of human confinement (See, e.g., Rhem v. Malcom, 371 F.Supp 594, 672 (S.D.N.Y.), affd, 507 F.2d 333 (2d Cir. 1974), affd on remand, 527 F.2d 1041 (2d Cir. 1975); Holt v. Sarver, 309 F.Supp 362 (E.D.Ark 1970), affd, 442 F.2d 304 (8th Cir. 1971); Newman v. Alabama, 559 F.2d 283 (5th Cir. 1997), cert denied, 438 U.S. 915 (1978)). These cases established that judicial review of the complaints of prisoners for more humane treatment was the new reality—very much a "handson" approach. Indeed, prison conditions were so poor during this period and the courts so willing to consider prisoner complaints that by the middle of the 1980s prisons in some forty-five states plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands were operating under some form of court order to correct constitutional violations ("Status Report").

The hands-off doctrine formally ended with two decisions from the Supreme Court in the early 1970s. In the first decision, Justice Byron White explicitly sounded the death knell for the hands-off doctrine in a single line: "[T]here is no Iron Curtain between the Constitution and the prisons of this country" (Wolf v. McDonnell, 418, U.S. 539, 555-56 (1974)). At about the same time, Justice Lewis A. Powell, writing for the Court, stressed that when a prison regulation or practice offends a fundamental Constitutional guarantee the federal courts will exercise their duty to protect those rights (Procunier v. Martinez, 416 U.S. 396, 405-06 (1974)). Since then, the Supreme Court has continually asserted that the hands-off doctrine has no place in constitutional jurisprudence (See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) ("[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution"); Turner v. Safley, 482 U.S. 78, 84 (1987)(same); Rhodes v. Chapman, 452 U.S. 337, 352 (1981) ("courts have a responsibility to scrutinize [prisoners'] claims. . ."); Bell v. Wolfish, 441 U.S. 520, 562 (1979)). It is now settled law that "hands-off" ends where the abridgement of constitutional rights begins.

But to say that inmates have rights is not to list the specific constitutional rights they retain nor is it to chart their boundaries. The elaboration of prisoners' rights that began during the civil rights era continues today, but the current period is also marked by retrenchment.

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